Two hundred days ago President Obama stoked the hopes of immigration advocates with his announcement of wide-ranging executive actions to try — as far as his authority would carry him — to change America’s broken immigration system for the better.

On the legal immigration front, last November the President also offered hope, and he promised change — but so far hopes have been dashed, and the only change observed has been of the chump variety. What has become of his November 21, 2014 Presidential Memorandum (“Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century“) which instructed the Secretaries of Homeland Security and State to report back to him by March 15, 2015 on recommendations to improve the legal immigration system? So far, certainly not the publication of the required report, and beyond that almost nothing else.

Immigration stakeholders heard the President proclaim at the March 23, 2015 SelectUSA Investment Summit that the new L-1B guidance memo on specialized knowledge would “[allow] corporations to temporarily move workers from a foreign office to a U.S. office in a faster, simpler way [that] could benefit hundreds of thousands of nonimmigrant workers and their employers.” Yet the L-1B guidance — long in gestation and butt ugly at birth — will only provide bureaucrats with more grounds to issue burdensome requests for evidence and ultimately say “no” in additional ways.

Indian companies are world class and strong, and do not need government protection from outside competition. . . . Indian-owned companies have invested over $11 billion in the U.S. and employ over 44,000 people here. These Indian companies have proven their ability to thrive in the United States, one of the most competitive markets in the world. . . .

The United States and India each have strong comparative advantages that become stronger when we work together. The United States and India have shared values and a shared commitment to democracy. Together, we are partners in upholding an international, rules-based order that ensures global peace, security, and prosperity. We want to seize this moment and bring to fruition the unrealized potential that still exists between our economies, for the betterment of the lives of both our citizens.

Since her speech, proponents of employment-based immigration reforms have seen what the Obama Administration apparently means when it proposes to uphold “an international, rules-based order that ensures global . . . prosperity.” The actions of the Administration’s immigration bureaucrats have recently offered their version of “rules-based” order — actions which hurt U.S. and Indian companies alike, to wit:

The release of the poorly reasoned precedent decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO, Apr. 9, 2015), which witnessed the USCIS Administrative Appeals Office’s foray into foreign turf, viz., the Labor Department’s H-1B regulations, to require that employers file amended petitions with USCIS each time an H-1B worker moves to a worksite located in a different metropolitan area. The AAO took this action even though it acknowledged that prior USCIS guidance distributed widely through an immigration stakeholder association expressly stated that no new filings would be necessary.

The USCIS pronouncement on May 21, transformed into a draft on May 27, that Simeio Solutions would be applied retroactively, even though precedent decisions by regulation, 8 CFR § 103.3(c)(“Service precedent decisions”), provide “for publication as precedent in future proceedings . . . (emphasis added).” With these May 21-May 27 actions, USCIS offered to grant an amnesty against the taking of “adverse action” against H-1B employers and workers for prior worksite changes, as long as amended petitions are filed by August 19, even though USCIS has not stated how far back in time its retroactive application of Simeio Solutions would go — an announcement sure to upend the summer vacation plans of company HR personnel and their immigration counsel.

The AAO’s recent release under the Freedom of Information Act of a 41-page non-precedent decision holding on a variety of newly articulated but nonetheless spurious theories that the position of management analyst is not an H-1B specialty occupation and the proposed H-1B beneficiary is not qualified serve in the proffered position. Immigration observers ask why the AAO would take 41 pages to deny H-1B eligibility in a non-precedent case. The probable answer is that it wanted to float new grounds for USCIS adjudicators to use as a script, much like the non-precedent 2008 L-1B GST case, with which to deny ever more H-1B petitions.

The failure of the USCIS EB-5 Immigrant Investor Program Office (IPO) over several months, despite repeated requests, to offer clarifying guidance on whether and under what circumstances the redeployment of EB-5 investor capital may be allowed under the regional center program where projects have long ago been completed, the requisite jobs have been created, but investor petitions seeking removal of conditions on residency cannot be filed or approved because immigrant visa retrogression affecting huge numbers of Mainland-China born investors delayed the initial grant of conditional residency. Equally or perhaps even more egregious is the IPO’s reversal of prior interpretations and its current interpretation that when a prospective EB-5 investor takes out a loan and uses those funds as a cash investment into an EB-5 project is treated a prohibited contribution of debt rather than an investment of capital. Apparently, cash is king in the investment world, except in the never-never-land of USCIS’s EB-5 IPO.

Social media flamed with expressions of outrage, relief and tepid optimism ever since President Obama announced on March 23, 2015 the release of long-awaited policy guidance on a key temporary worker visa category:

Today, I’m pleased to announce a new action I’m also taking to make it easier for global companies who are present here today to launch and invest in the U.S. My administration is going to reform the L-1B visa category, which allows corporations to temporarily move workers from a foreign office to a U.S. office in a faster, simpler way. And this could benefit hundreds of thousands of nonimmigrant workers and their employers; that, in turn, will benefit our entire economy and spur additional investment. (Applause.) [Bolding added.]

Frankly, after waiting years for new guidance on L-1B eligibility, I’m deeply disappointed. Here’s my take on this poorly reasoned, and inartfully articulated rehash of long-accepted principles now burdened with a perverse array of contradictory, extra-legal and impractical notions:

Cherry-Picked Definitions of “Special Knowledge” and “Advanced Knowledge or Expertise.”

The phrase, “specialized knowledge” is defined virtually identically in the Immigration and Nationality Act and USCIS regulations as “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or, an advanced level of knowledge or expertise in the organization’s processes and procedures (bolding added).” The L-1B guidance memo purports to adopt dictionary definitions of the words, “special” and “advanced,” but then contorts the adopted definitions to make them more onerous than common parlance would require.

According to the guidance , dictionaries define “special” as “surpassing the usual,” “distinct among others of a kind,” “distinguished by some unusual quality,” “uncommon,” or “noteworthy.” The memo then adopts its own definition of “special knowledge” as “knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer (bolding and italics in original, underlining added).” USCIS does not explain the insertion of the word, “demonstrably.” The word is gratuitous, given that elsewhere the memo confirms that the standard of proof on the petitioning employer is by the “preponderance of the evidence” or a “more probable than not” standard. The only reason for sticking “demonstrably” before “distinct or uncommon” is to give adjudicators with a mind to issue a Request for Evidence (RFE) or deny the L-1B petition a chance to continue with that proclivity (I can foresee it now, “Petitioner’s evidence was distinct and uncommon, but not demonstrably so”).

Moreover, the agency does not explain the justification for using the more difficult definition of “advanced” knowledge or expertise — which, as USCIS notes in the memo, dictionaries variously define. One of the linked definitions of “advanced” is “being beyond the elementary or introductory.” Given that the President expects the new guidance memo to “benefit hundreds of thousands of nonimmigrant workers,” adoption of the easier standard, “being beyond the elementary or introductory,” would best satisfy this presidential expectation.

Also troublesome, the memo provides an inconsistent, alternative definition of “advanced”: “greatly developed or further along in progress, complexity and understanding.” “Further along” (which likewise would better comport with the President’s expectations) seems a less difficult standard to prove than “greatly developed.” Moreover, USCIS should treat knowledge that is further along in any one of the three alternative requirements “progress,” “complexity” or “understanding.” Here too the agency may give unsympathetic or “just say no” adjudicators a way of denying the L-1B petition by emphasizing that the advanced knowledge is not “greatly developed” or “further along in progress, complexity and understanding.” (Bolding added.)

A Mandate to Make Irrelevant, Impossible or Unnecessarily Strict Comparisons.

The policy memo ignores the statutory definition of “special” knowledge by instructing adjudicators to compare the beneficiary not only with other workers in the same L-1 qualifying organization (which is proper because the category, after all, is expressly dubbed the “intracompany transferee”) but also a comparison of other workers in the same industry. The memo states:

Demonstrating whether knowledge is “special” or “advanced” inherently requires a comparison of the beneficiary’s knowledge against that of others. The petitioner bears the burden of establishing such a favorable comparison. Because “special knowledge” concerns knowledge of the petitioning organization’s products or services and its application in international markets, the petitioner may meet its burden through evidence that the beneficiary has knowledge that is demonstrably distinct or uncommon in comparison to the knowledge of other similarly employed workers in the particular industry or within the petitioning organization. Alternatively, because “advanced knowledge” concerns knowledge of a company’s processes and procedures, the petitioner may meet its burden through evidence that the beneficiary has knowledge or expertise that is greatly developed ormore complex in comparison to other workers in the petitioning employer’s operations. (Bolding added.)

The only reference in the statutory definition of “special knowledge” to actions outside the company is the allusion to knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in internationalmarkets.” (Bolding added.) Nothing in this definition makes it “inherent” that USCIS must compare workers in the particular industry. Rather, requiring a comparison of workers in the same industry will merely saddle petitioners with the nearly impossible challenge of providing inaccessible or nonexistent evidence. How can one company in an industry (the petitioner) gain access to data about the level of knowledge held by its competitors’ employees of the petitioner’s “product, service, research, equipment, techniques, management, or other interests.” Any company with valuable trade secrets or intellectual property will take affirmative steps to make sure that no outsider has access to such highly coveted and valuable documents or data. Companies routinely require all employees to sign non-disclosure/non-use agreements at the outset of employment, and keep their prized IP under wraps. There is no way in virtually all cases that others in the same industry could possibly access it. This is a fool’s errand, and USCIS has no business forcing L-1B petitioners to chase the nonexistent or unattainable.

One Hand Giveth, While the Other Taketh Away.

The USCIS memo offers the welcome reaffirmation of prior policy that specialized knowledge need not be proprietary, subject to patent or copyright protection, or “narrowly held” within the petitioner’s organization. It also seems to debunk the myth (bereft of support in statute, regulation or legislation) perpetrated by the State Department that “[If] everyone is specialized, then no one is.” Readers of the memo are warmed by the following excerpt:

Multiple employees within a company may have obtained the experience, training, or education necessary to possess the same type of specialized knowledge. Some companies may use technologies or techniques that are so advanced or complex that nearly all employees working on the relevant products or services possess specialized knowledge. The mere existence of other employees with similar knowledge should not, in and of itself, be a ground for denial.

That warmth quickly turns into a chill, however, when in the very next paragraph the memo authorizes adjudicators to consider irrelevant factors which flatly contradict and neuter the “not-necessarily-narrowly-held” acknowledgement. These factors (bolded below) are extra-legal and clearly beyond the reach of permissible interpretation of statute, regulations, and legislative history:

[O]fficers generally should carefully consider the organization’s need to transfer the beneficiary to the United States. The officer may consider, for example, the need for another individual with similar specialized knowledge in the organization’s U.S. operations and the difficulty in transferring or teaching the relevant knowledge to an individual other than the beneficiary. The officer should also consider . . .whether the salary to be paid to the beneficiary is comparable to similarly situated peers in such U.S. operations. Where many employees within the organization’s U.S. operations share the beneficiary’s knowledge, yet the beneficiary will be paid substantially less than those similarly situated employees, this may indicate that the beneficiary lacks the requisite specialized knowledge. As described infra, however, there may be valid business reasons for the wage discrepancy, but justification for the [wage] variance generally should be evaluated in light of the skills, experience, and other factors pertinent to the entire spectrum of employees in the U.S. operations who possess the requisite specialized knowledge. (Bolding supplied.)

The “need” of the petitioner to transfer a specialized-knowledge worker is a factor that can only be interpreted subjectively. Which business needs are to be considered worthy and which must be rejected as unnecessary? In a hotly competitive industry where customer loyalty is hard to achieve and maintain, is a customer’s emphatic preference for speedier fulfillment of a contract a sufficient “need” to transfer another L-1B worker? Is greater profit? Is avoidance of staff burnout? Is the obligation to cut payroll to avoid bankruptcy a sufficient need? The memo doesn’t say. Instead it leaves the decision to the unguided discretion of adjudicators who would be authorized to tell businesses that their needs are not meritorious.

Likewise, unworkable and unlawful is the requirement in the memo that adjudicators compare the wages of “similarly situated peers” with the proposed wage of the L-1B beneficiary. How much of a wage variance is required to be “substantial” and how “similar” must other peers be to the L-1B transferee in knowledge, expertise, duties, seniority, performance rating or other factors of subjectively perceived similarity? Again the guidance doesn’t say — but leaves a door wide open for adjudicators to apply inconsistent, subjective standards to reject L-1B petitions at their individual whim (for we all know that there is virtually no supervisory review of draft denials).

Moreover, unlike the H-1B work visa category and its mandate that employers pay the “required wage” (the local prevailing or actual wage at the job site, whichever is higher), there is no legal basis under the L-1 category for USCIS to require submission of evidence of wages paid (indeed, the memo acknowledges that high salaries are not required) or to evaluate their sufficiency. These subjectively determined dictates considered in relation to other workers — the business’s need for the L-1B worker, and the adequacy of wages paid — will force petitioners down rabbit holes of burden, delay, cost and distraction. USCIS should delete these factors.

Confounded Conflation. The USCIS memo provides a laundry list of evidence that may be submitted to establish specialized knowledge. The list is illustrative but not exhaustive. Unfortunately, it does not distinguish which items on the list would constitute proof of the alternative forms of specialized knowledge, i.e., “special knowledge” or an “advanced level of knowledge or expertise”). By conflating the two alternative definitions, the agency blurs the adjudicator’s field of vision. For example, conflation occurs in the following excerpt, the memo’s ill-advised definition of “special knowledge,” which (as noted above) requires a comparison of the knowledge held by other workers in the same company AND in the particular industry, whereas “advanced knowledge or expertise” quite properly requires no such comparison to others in the same industry:

Evidence that the alien is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations.(Bolding added.)

This incautious wording raises the specter that adjudicators when considering the “advanced,” alternative definition of specialized knowledge will require a comparison of workers in the same industry, even though such a demand cannot be not supported by the definition of that term in the memo.

May Morphs into Must. One of the most disturbing aspects of memo is the USCIS’s list of factors to prove specialized knowledge and the evidence the memo suggests might be probative. For example, as my colleague, Austin Fragomen, observed in a recent webinar hosted by the Council for Global Immigration, “how do you show that the beneficiary’s work is particularly relevant to the company’s competitiveness in the marketplace? . . . [Why do we need] a microeconomic analysis of the impact of that one employee”? He’s right: The only part of the statutory and regulatory definition of specialized knowledge that refers to external factors is the sub-definition for “special” knowledge, but that only asks essentially whether the beneficiary has special knowledge of the petitioner’s “product, service offering or ‘secret sauce’ [my phrasing]” and “its application in international markets.” Even more troubling is the daunting list of types of allegedly probative evidence that a petitioner may be asked to submit. Imagine the forest of trees converted to paper that will be consumed in assembling initially to accompany the L-1B petition or responding to an adjudicator’s RFE that may (but likely now must) include:

Documentation of training, work experience, or education establishing the number of years the individual has been utilizing or developing the claimed specialized knowledge as an employee of the organization or in the industry;

Evidence of the impact, if any, the transfer of the individual would have on the organization’s U.S. operations;

Evidence that the alien is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations;

Contracts, statements of work, or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the organization’s competitiveness in the marketplace;

Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the organization’s productivity, competitiveness, image, or financial position;

Personnel or in-house training records that establish that the beneficiary’s claimed specialized knowledge normally can be gained only through prior experience or training with that employer;

Curricula and training manuals for internal training courses, financial documents, or other evidence that may demonstrate that the beneficiary possesses knowledge of a product or process that cannot be transferred or taught to another individual without significant economic cost or inconvenience;

Evidence of patents, trademarks, licenses, or contracts awarded to the organization based on the beneficiary’s work, or similar evidence that the beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily proprietary or unique to the petitioning organization; and

Payroll documents, federal or state wage statements, resumes, organizational charts, or similar evidence documenting the positions held and the wages paid to the beneficiary and parallel employees in the organization.

How will this list — which seems likely to require concurrent violations of the spirit if not the letter of the Environmental Protection Act and the Paperwork Reduction Act — fulfill the President’s March 23rd description of the L-1B category as allowing “corporations to temporarily move workers from a foreign office to a U.S. office in a faster, simpler way (bolding supplied)”? Simply put, the memo’s laundry list makes an L-1B petition neither fast nor simple. Instead, it gives adjudicators a license to prolong the dreadful status quo.

A specific example of a situation involving specialized knowledge would be if a foreign firm in the business of purchasing used automobiles for the purpose of repairing and reselling them, some for export to the United States, petitions for an alien to come to the United States as a staff officer. The beneficiary has knowledge of the firm’s operational procedures, e.g., knowledge of the expenses the firm would entail in order to repair the car as well in selling the car. The beneficiary has knowledge of the firm’s cost structure for various activities which serves as a basis for determining the proper price to be paid for the vehicle. The beneficiary also has knowledge of various United States customs laws and EPA regulations in order to determine what modifications must be made to import the vehicles into the United States. In this case it can be concluded that the alien has advanced knowledge of the firm’s procedures because a substantial amount of time would be required for the foreign or United States employer to teach another employee the firm’s procedures. Although it can be argued that a good portion of what the beneficiary knows is general knowledge, i.e., customs and EPA regulations, the combination of the procedures which the beneficiary has knowledge of renders him essential to the firm. Specifically, the firm would have a difficult time training another employee to assume these duties because of the interrelationship of the beneficiary’s general knowledge with the firm’s method of doing business. The beneficiary therefore possess[es] specialized knowledge. . .

processing certain shellfish desires to petition for a beneficiary to work in the United States in order to catch and process the shellfish. The beneficiary learned the process from his employment from an unrelated firm but has been utilizing that knowledge for the foreign firm for the past year. However, the knowledge required to process the shellfish is unknown in the United States. In this instance, the beneficiary possesses specialized knowledge since his knowledge of processing the shellfish must be considered advanced.

The common theme which runs through these examples is that the knowledge which the beneficiary possesses, whether it is knowledge of a process or a product, would be difficult to impart to another individual without significant economic inconvenience to the United States or foreign firm. The knowledge-is not generally known and is of some complexity.

Regrettably, the L-1B draft memo is prolix in its verbiage but devoid of any helpful examples by which to guide adjudicators and stakeholders in understanding what constitutes specialized knowledge in the real world.

Where Are Your Compatriots? The new L-1B memo creates a measure of predictability and reliability when petitioners seek to extend the status of a foreign worker whom USCIS previously found to satisfy the requirements for specialized knowledge. In the following prescribed situation the memo declares that USCIS officers should not readjudicate the previously established underlying facts unless gross error in the prior determination or material changes are identified:

In matters relating to an extension of L-1B status involving the same parties (i.e., the same petitioning organization and beneficiary employee) and the same underlying facts, USCIS officers should give deference to the prior determination by USCIS approving L-1B classification [except in cases involving work at third-party locations].

The memo offers no indication that USCIS has consulted and achieved buy-in on the memo’s pronouncements from the two other federal agencies which must decide whether specialized knowledge has been proven in a particular case, whether in a previously approved petition or a new request, namely, the U.S. Department of State (when deciding blanket L-1B visa applications) and U.S. Customs & Border Protection (when considering applications for admission to the U.S. in L-1B status). Presumably, the three deciders of L-1B eligibility ought to have engaged in interagency discussions of the subject before the memo’s release. In any case, when the memo is released in final form, USCIS should expressly note that all three units are in agreement with the ultimate product.

No Disparate Treatment or Impact Tolerated. Another glaring omission is a much-needed admonition by USCIS that all L-1B petitions must be decided impartially, i.e., without regard to the national origin or citizenship status of the beneficiary or the country of corporate headquarters or incorporation. Sadly, a recent study published by the National Foundation For American Policy reveals that the denial rate for Indian citizens topped out at 56% in 2014 although the denial rate for beneficiaries hailing from all other countries was a mere 13%. Indeed, given the gravity and proliferation of the problem of anti-Indian bias, an admonition is not enough. USCIS should make clear that adjudicators’ L-1B decisions (grants, denials, RFEs and revocations) will be individually tabulated, not only by the country of the beneficiary’s nationality but also by the degree to which their adverse decisions reflect non-compliance with whatever USCIS headquarters’ interpretation of L-1B eligibility criteria, standard of proof or degree of boilerplate, kitchen-sink demands for additional evidence. Reprobate behavior must then be the subject of discipline, including termination of employment for the most recalcitrant and unrepenting.

On that score, notwithstanding the President’s lofty expectations concerning the “hundreds of thousands” of L-1B visa holders who will achieve temporary work visa status “in a faster, simpler way,” the leadership of DHS and USCIS must make sure these laudable expectations are not sabotaged by “get to no” adjudicators who “grouse” (my word) or “whine” (Sen. Harry Reid’s phrasing) to Sen. Chuck Grassley, as they did in their unjust effort to smear the good name and reputation of former Director of USCIS, Alejandro Mayorkas (now, Deputy Secretary of Homeland Security), as depicted in the recent hatchet job of a DHS Office of Inspector General report on a small number of EB-5 case adjudications. Without constant oversight, these USCIS first-line adjudicators will remain as obstreperous as ever, much like the insubordinate U.S. Immigration and Customs agents who sued the Obama Administration over its deferred-action and prosecutorial-discretion policies but who’ve justly received their comeuppance from the Fifth Circuit Federal Court of Appeals.

So that’s my take on the USCIS’s draft L-1B policy memo. Be sure to share your view, not just in the comments section below. Submit your timely your feedback to USCIS at Public.Engagement@uscis.dhs.gov.

Terabytes of text have already been generated in the course of extolling or excoriating President Obama for his November 20 Executive Actions on Immigration. The prolific foaming of bloviating mouths has mostly been prompted by the promise of deferred action and work permits for undocumented immigrants under the DACA and DAPA programs. Surprisingly, however, his equally profound measures to improve the legal immigration system have been lost in the GOP’s ongoing Sturm und Drang over what they dub “Executive Amnesty.”

Among these legal immigration reforms, an almost overlooked November 21, 2014 Presidential Memorandum (“Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century“) invited the submission of individual and stakeholder recommendations to improve legal immigration. If the Obama Administration were to embrace the best of the recommendations submitted in response, many good things would flow from this crowd-sourcing initiative. Without involving or seeking the consent of Congress, the Administration could readily adopt a plethora of path-breaking innovations to our legal immigration system which would profoundly improve how this country welcomes and benefits from foreign strivers, entrepreneurs, scientists, students, investors and other worthy contributors.

As my colleagues, Gary Endelman and Cyrus Mehta put it recently:

At the end of the day, immigration policy is not only, or even primarily, about the immigrants but about how the United States can attract and retain the best and the brightest regardless of nationality who wish to join us in writing the next chapter of our ongoing national story. There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done.

The November 14 memorandum directed the Secretaries of Homeland Security and State to solicit proposals from stakeholders and the public to modernize the legal immigration and visa system. The Secretaries of DHS and DOS would then evaluate the proposals so submitted in consultation with several Cabinet members (the Attorney General, and the Secretaries of Agriculture, Commerce, Labor, and Education), and other federal officials (the Director of the Office of Management and Budget, the Director of the National Economic Council, the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Domestic Policy Council, and the Director of the Office of Science and Technology Policy). The official invitation to submit ideas took the form of a December 30 Notice of Request for Information, which allowed the submission of up to 30 pages of commentary by January 29. The comment period has closed, and the proposals are now posted online for all to see.

Here are just a few of the many recommendations (accessible through the hyperlinks in the preceding paragraph) which I believe would comprehensively transform and improve America’s decrepit immigration system:
Improve access to justice. ABIL, AILA and the Council urged the Department of State (DOS or State) and U.S. Customs & Border Protection (CBP) to grant every individual interviewed by a federal immigration official the right to the representation of an attorney (either in person or by electronic means, but still at no cost to the government). The right to counsel would extend to (a) visa applicants who are interviewed by a consular officer, (b) applicants seeking admission to the U.S. during secondary or deferred inspection who are interviewed by a CBP officer, and (c) petitioners seeking immigration benefits who are interviewed in the course of FDNS site visits by USCIS investigators. ABIL also urged State and DHS to create a pilot system of binding review of decisions by consular officers to refuse certain categories of visas (all immigrant visas and nonimmigrant refusals under the E-1 treaty trader, E-2 treaty investor, E-3 Australian specialty occupation worker, H-1B specialty occupation, L-1 intracompany transferee and O-1 extraordinary ability visa categories).
Develop a single body of “immigration common law” and revitalize the advisory opinion process. ABILproposed the creation of a single administrative tribunal to hear appeals from decisions and adjudications by all federal immigration agencies, thereby consolidating the work of multiple federal appellate panels and reducing the complexity and inconsistency of precedent and non-precedent immigration law decisions. ABIL also proposed that State publish all of its now-secret Advisory Opinions which guide consular officers in visa determinations and that USCIS adopt a published IRS-style private letter ruling process whereby the party seeking written guidance on the legal consequences of a particular set of facts would receive a binding interpretation but other stakeholders might benefit from the agency’s non-binding guidance in analogous circumstances.
Prohibit relitigating prior USCIS decisions granting employment-based immigration benefits. The 16, the Chamber, AILA and CFGI proposed that USCIS give “binding deference” to the agency’s previous grants of employment authorization whenever a petition seeking extension of the employer’s petition and of the worker’s nonimmigrant status involves the same employer, same employee, and same job duties, unless an adjudicator can establish, and articulate with specificity, fraud or clear gross error. Such a change would necessarily reduce the burdensome and frequent requests for additional evidence (RFEs) and introduce a welcome measure of reliability, consistency and predictability to the process of extending the work permission of nonimmigrant employees. To make this change, USCIS would need to adopt IIG’s proposal to speedily transition away from its “antiquated paper environment, supported primarily by legacy INS [Immigration and Naturalization Service] mainframe systems and databases with little to no interface or advance search or analytics capabilities” and instead it must “automate” “all USCIS systems and filing processes”.
Hasten the issuance of work visas, immigrant visas, green cards, work authorization and international travel permission. Many commenters (including ABIL, AILA, CFGI and the 16) proposed that State and USCIS adopt a range of proposals which, in various ways, would (a) count only the principal worker and not the dependents when reporting and applying the cutoff date on available immigrant visas as announced in State’s Visa Bulletin, (b) recapture the hundreds of thousands of immigrant visas from prior years that were unused and thus squandered because of inadequacies in the way green-card quotas were allocated between DOS and USCIS, (c) allow for much earlier acceptance of employment-based applications for adjustment of status, thereby hastening the issuance of Employment Authorization Documents (EADs) and Advance Parole travel authorization, and (d) plug gaps in the grant of employment authorization by extending it for longer periods or on an interim basis to more categories, e.g., persons in U visa status, applicants for renewal of EADs, and persons holding employment-based work-visa status in nonimmigrant categories omitted by the 240-day period of interim employment authorization allowed in the Form I-9 (Employment Eligibility Verification) regulations. GWJA also urged that USCIS, upon approving an immigrant visa petition, automatically forward the notice of appearance (Form G-28) to State’s National Visa Center so that prolonged delays now experienced in the recognition of attorney representation would be eliminated.
Clarify and liberalize the rules on immigration successorship in interest. ABIL proposed that DHS and DOS adopt a successor in interest principle that would (a) expand the range of situations in which corporate restructurings are recognized for immigration purposes, thereby allowing uninterrupted employment authorization and the preservation of pipeline employment-based immigrant visa and adjustment of status benefits, and (b) dispense with current USCIS interpretations whereby immigration successorship requires an “assumption of all or some liabilities, whether they be solely immigration-related liabilities or liabilities associated with the occupational classifications of the particular beneficiaries affected by the change in corporate circumstances.”
Adopt improvements to promote investment, entrepreneurship, job creation and business innovation. Many of the commenters suggested changes to spur investments, business activity, innovation and job creation. CFGI proposed the creation of a “Robust Trusted Employer Program” which would allow faster and more streamlined approvals of requests for immigration benefits submitted by “any employer that can demonstrate a track record of compliance with applicable [immigration] laws.” ABIL urged the Obama Administration to “create an agency to support and protect the economic benefits of immigration within the Department of Commerce or another cabinet department.” AILA and ABIL proposed that DHS “create explicit immigration protections and benefits for small businesses,” e.g., by (a) rescinding the Neufeld Memorandum (which effectively abolished the distinction, long recognized in precedent decisions that, for immigration purposes, a corporation is to be considered distinct from its owners), (b) clarifying that the customary attributes of start-ups and small businesses are not necessarily indicia of fraud, and (c) adopting in formal policy guidance and ultimately in regulations the formal recognition that the characteristics of start-ups as set forth in USCIS’s Entrepreneur in Residence training materials are acceptable examples of legitimate forms of business operations and activities. ABIL and AILA also proposed numerous improvements that should be implemented by USCIS’s EB-5 Immigrant Investment Program Office (IPO) in order to promote the IPO’s announced goals of enhanced transparency of eligibility criteria, speedier case processing and the safeguarding of EB-5 program integrity.
Enhance immigrant and nonimmigrant protections and promote immigration integrity. A number of commenters suggested that DHS and DOS should ease eligibility requirements or offer enhanced benefits to individuals seeking or holding a particular visa status. IIG offered a range of suggestions to improve the lot of foreign medical graduates (FMGs) including, among other proposals, H-1B cap gap relief for FMGs, clarification that J-2 dependents of FMGs are not subject to the two-year, home-country, physical-presence requirement applicable to J-1 FMGs, and clearer and more expansive interpretations of (a) “affiliated or related” parties eligible for exemption from the annual H-1B quota, and (b) requirements for the physician national interest waiver. GWJA also suggested several improvements, including, for example, enhanced protections available to individuals who have applied for or hold U visa status, job “portability” benefits for H-2B workers, greater age-out protections for dependents in VAWA cases, and an obligation undertaken by DOS to provide more explicit statements of the actual grounds for a visa refusal and not merely uninformative citation to the general ineligibility ground of denial found at Immigration and Nationality Act (INA) § 214(b). CAP urged DHS and DOS to improve transparency and reporting of data on LGBT individuals who seek or hold refugee admission or asylum status. Don Crocetti of IIG suggested that USCIS automate immigration case processing and build “a person and organization centric data system complete with electronic filing and web-based interviews” — a system which “contains advanced and ‘Big Data’ analytics to support a proactive anti-fraud operation.”
Freeze I-9 and worksite enforcement until USCIS has decided all DACA/DAPA applications for work permission. Nicole Kersey of KIC, along with ABIL, proposed that the DHS Secretary cause U. S. Immigration and Customs Enforcement (ICE) to suspend and defer, on a temporary basis, worksite investigations and enforcement of certain employer-sanctions provisions of the Immigration Reform and Control Act (relating to the maintenance of Forms I-9 and the duty of employers to refrain from knowingly hiring or continuing to employ unauthorized workers). The temporary freeze would end, they proposed, once USCIS certifies that it has decided all applications for work permission under the DACA and DAPA program. The purpose of the proposed deferral of ICE enforcement, Ms. Kersey and ABIL explained, would be to avoid actions that might undermine the President’s goals of maintaining family unity in mixed-status households and encouraging eligible DACA and DAPA applicants to “get right with the law” and “come out of the shadow.” These laudable Presidential purposes, the proponents maintained, would be jeopardized if ICE — by virtue of a worksite enforcement action — were to impose a duty on employers to fire unauthorized workers who may ultimately receive employment permission.
Improve Federal Immigration IT Infrastructure. AILA suggested several IT enhancements, including USCIS acceptance of online payment of filing fees, standardization of web-published protocols and response times to email queries submitted to consular officers at posts worldwide, and permitting additional functionality in the “myUSCIS” Case Status Online query system by allowing access to the actual RFE or notices of intent to revoke or deny a petition issued rather than merely viewing a report that an RFE or notice has been issued (which must then await delivery by snail mail). In addition, ABIL and AILA suggested that — in the words of the AILA comment — “As USCIS continues to develop ELIS [the USCIS Electronic Immigration System] and expand its functionality to other forms and uses, it would be in the agency’s best interest to reach out to vendors and large-scale users, including AILA, for regular usability testing and feedback.” ABIL proposed a variety of additional IT suggestions:

DHS (USCIS and CBP) DOL (the Office of Foreign Labor Certification (OFLC)) and DOS (the Bureau of Consular Affairs [BCA]) should work to achieve interoperability for users so that employers, petitioners and applicants for immigration benefits, lawyers, law firms and organizational stakeholders such as universities need not be forced to re-enter the same data into disparate, siloed systems;

All possible questions in online forms that function as a database, such as the BCA’s DS-160, where distinct questions appear as determined based on earlier answers to prior questions, should be published and available in full with a cross-referencing of questions and answers by visa category so that the public, as contemplated by the Paperwork Reduction Act, can know in advance what information to assemble.

All electronic forms should provide the opportunity to expand on or clarify an answer to any question on the form in data fields permitting unlimited entry of text, since many questions cannot be answered truthfully and fully with, for example, a simple “yes” or “no” reply. Many such questions require the application of fact to law and thus require an answer that is consistent with applicable law. As currently configured, these forms invite a later accusation by federal immigration authorities of, inter alia, a willful, material misrepresentation under INA § 212(a)(6)(C), a falsely made document under INA § 274C(f), or a false statement under 18 U.S.C. § 1001;

The attorney for an employer (with authorization of the subject individual employee or family member) should be allowed to access and download the electronic I-94. As the CBP e-I-94 system now is configured, only the applicant for admission who is ultimately admitted, or his or her attorney, can access the database and retrieve the I-94. Many large corporations centralize the management of their foreign employee’s maintenance of immigration status through counsel. Without access to the e-I-94 system by corporate counsel, this process is severely impeded and the prospect of an inadvertent violation of the unlawful-presence 3- and 10-year bars could occur; and

Online visa application[s] and [USCIS] immigration forms should allow the user to move from one screen to the next without completion of all relevant data requested in the screen. Often, some but not all information is not presently available. The online systems should also allow saving, downloading, and emailing partially completed forms so that information already provided need not be required to be re-entered again.

* * *

Since other commenters’ proposals were not summarized, and additional comments of the submitters identified above may have been given unintentional short shrift, I encourage all immigration stakeholders to spend as much time as possible reading the full set of comments and then, using all forms of social and traditional media, to focus public attention on the innumerable ways that DHS, DOS and the several agencies that administer federal immigration laws can optimize our nation’s legal immigration system. It is broken; so let’s make the Administration fix it.

With slightly less giddy anticipation than the annual fan frenzy evoked by the Academy Awards, the nation awaits another hotly competitive yearly awards ceremony. Yes, Nation of Immigrators, it’s time to announce the 2014 winners and losers in dysfunctional immigration law and policy who’ve earned the coveted (or disdained) IMMI Award. Some recipients are repeats from hitherto IMMI awards of 2010, 2011, 2012 and 2013; others will take home an IMMI for the first time. The rules are the same. The IMMIs are merely this outside-the-Beltway observer’s take on the year’s highs and lows in U.S. immigration, with help from some Cool Immigration Lawyers.

Evolver in Chief. Fighting off a strong challenge by Sean Hannity who demonstrated astonishing elasticity in opposing, then supporting, then again opposing lawful status for the undocumented and a path to citizenship, President Obama earned this IMMI for his yoga-like pliancy. As itemized in the screed of a complaint filed by multiple states, the President opined at least ten times before his grant to DREAMers in 2012 of deferred action, and work and travel permits, and nine times thereafter, that he lacked unilateral authority to address America’s dysfunctional immigration policies, that is, until he announced a series of Executive Actions (not Executive Orders) in the year’s penultimate month.

Make sure that they understand they don’t have to hire a lawyer . . . in order to pay for this [requests for deferred action]. Because what we saw during DACA [Deferred Action for Childhood Arrivals] when the young people were given this opportunity, a lot of people signed up but sometimes you’d see advertisements you know, “Come and give us $1,000 or $2,000 and we’ll help you.” You don’t have to do that.

The President also may not have read but surely officials in the Departments of Homeland Security and Justice are aware of Padilla v. Kentucky, where Justice John Paul Stevens, writing the majority opinion, stated: ”Immigration law can be complex, and it is a legal specialty of its own.” While not all applicants seeking temporary reprieve under DACA or DAPA [Deferred Action for Parental Accountability] need a lawyer if their case is straightforward and they are assisted by an Accredited Representative approved by the Board of Immigration Appeals (certainly never a notario), numerous cases will require the advice of a competent immigration lawyer. I have a ready answer when prospective clients ask me, “Why do I need a lawyer to fill out immigration forms? I tell them that “I guess I could perform surgery on myself, but it is not advisable.” Another lawyer I know, when faced with the same question, says he’s done the following:

I used to pick up a copy of the [Immigration and Nationality Act] and pick out section 203(a) and hold out the pages “these are the ways to get green cards.” I then indicate section 212(a) and hold out the pages — “These are the ways you will not be allowed to obtain a green card.” And then, do the same with what is now [section] 237(a). “And these are the ways that once you have a green card, it can be taken away. . . .” “Any questions?”

To be sure, DACA and DAPA are not as complex as the myriad ways to assemble the right evidence to qualify for, obtain, maintain or lose permanent resident status. Still, the process is sufficiently complex and the consequence of failing to qualify significant (the individual is now on the government’s radar and is subject to removal). Thus, even for those seeking deferred action, the need for a lawyer (or merely the desire to hire a lawyer to facilitate the assembly of potential evidence of physical presence in the U.S.), is obvious. Hence, the President’s advice is simply incomplete and therefore wrong. Thus, for failing to make appropriate distinctions and caution that some cases may require legal counsel, President Obama deserves the opprobrium of this IMMI.

Profile in Poltroonery. In 2014, the winner of this IMMI offered an enlightened solution to illegal immigration:

Our national and economic security depend on requiring people who are living and working here illegally to come forward and get right with the law. There will be no special path to citizenship for individuals who broke our nation’s immigration laws – that would be unfair to those immigrants who have played by the rules and harmful to promoting the rule of law. Rather, these persons could live legally and without fear in the U.S., but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families (without access to public benefits).

All about Love. Jeb Bush, the first 2016 candidate for the presidency, earned an IMMI for his recognition of the prime reason why the undocumented take the risk of dying in the desert. With Fox News in attendance, Mr. Bush commemorated the 25th anniversary of his dad’s presidency, offering these honest words:

The way I look at this is someone who comes to our country because they couldn’t come legally, they come to our country because their families — the dad who loved their children — was worried that their children didn’t have food on the table. And they wanted to make sure their family was intact, and they crossed the border because they had no other means to work to be able to provide for their family. Yes, they broke the law, but it’s not a felony. It’s an act of love. It’s an act of commitment to your family. I honestly think that that is a different kind of crime that there should be a price paid, but it shouldn’t rile people up that people are actually coming to this country to provide for their families.

We Read Nothing. This IMMI goes to the State Department’s Bureau of Consular Affairs — an agency that places unreasonable mandates on consular officers to adjudicate far too many visa applications in too short a time frame. The upshot is that consulates, such as the busiest blanket L-1 post in Chennai, will no longer read substantive correspondence from companies seeking to hire tech workers and instead requires all the facts to come solely from the mouth of the visa applicant during the brief consular interview.

Best Manual on Surviving Secondary Inspection. The IMMI goes to the Central Intelligence Agency for its interesting and thorough “Surviving Secondary Screening at Airports While Maintaining Cover.” In words that might apply to ordinary people applying for admission at a U.S. port of entry, the CIA notes: “Secondary screening—a potentially lengthy and detailed look by airport officials at passengers not passing initial scrutiny—can significantly stress the identities of operational travelers.” The cover wins an IMMI for best government cover page as well. Check it out at p. 2.

[Blogger's Note: Today we have a dandy guest post from the ever insightful, prolific and droll, Nici Kersey. Don't be put off by her introductory paragraphs. There's an immigration gem awaiting -- one that employers, and the lawyers who counsel them, will not want to miss.]

People will try to hit you with golf balls. They will find this funny. They are probably drunk and are unlikely to hit you, but it will be unnerving, and you will learn to avoid the golf course area during the drunkest hours.

Signs warning you about alligators will, at first, cause you to run your fastest miles in years. Over time, you will begin to slow, hoping to actually see some evidence that alligators once inhabited the earth. You will see a snake one day, and that is as exciting as your wildlife encounters will be.

Until the day you see a meerkat, which you will chase and photograph. But then you will figure out that it was just an Eastern Fox squirrel, which is basically a larger-than-normal squirrel wearing a ninja mask.

The inmates will, at first, have an effect similar to the alligator signs, causing you to run faster and carry mace. Over time, you will realize that they have little interest in you, and they are prohibited from even speaking to you. You will eventually just wave hello to the prisoners and start to concoct wild plans for how you can help them escape from jail.

Two things that you will never get used to: running behind an active firing range. (This will always make you run very, very fast.) Ditto: running under a C-130 that is landing. You will manage to be within 20 yards of the end of the runway at least twice, and both times, you will nearly soil yourself.

Every now and then, your normal running trail will be closed due to “explosive dog training.” Causing you to wonder how, exactly, one trains a dog to explode and, if you succeed, why you even bothered with the training.

Okay, okay. I’m supposed to write about immigration, right? Here goes: when I run 4 or
more miles, I come to an intersection that used to cause anxiety: turn left, you enter the federal prison; turn right, and signs warn you of alligators; turn around, and you have to run back through the golf course where the drunk people tried to hit you with balls.

Employers who are trying to decide whether to conduct a voluntary I-9 audit today face a similar intersection. Turn left, they risk entering the federal prison in a way more “official” way; turn right, and they may lose valuable employees who are eligible for work authorization which simply hasn’t been granted yet. (In this metaphor, the employees are getting gobbled up by the alligators. Get it?)

Previously, employers deciding whether to undergo an audit needed to consider several factors. Among them: the cost of the audit, the risk that would be eliminated by the audit, whether the employer could take the time to correct violations discovered, and whether the business could survive the loss of any employees determined to lack employment authorization. The new executive order adds a twist. A number of employees who do not hold work authorization today may obtain employment authorization within the next 12-24 months. This raises the question of whether now is the right time to conduct an audit.

If an employer discovers today that Bob presented fake documents when he was hired, and the employer confronts Bob, and Bob admits that his documents were fake and that he is not authorized to work, the employer must terminate Bob’s employment. If Bob says he is not work-authorized today, but he is eligible for DAPA under the new executive order, the employer still must terminate Bob’s employment, even though – if the employer had waited a year to conduct the audit and confront Bob – Bob’s fate could have been much different.

So the question becomes whether employers would be wise – or kind – to wait until the new batch of DACA/DAPA beneficiaries have obtained employment authorization prior to conducting a voluntary audit.

If the employer waits a year or so, it can clean up its I-9s without the loss of as many valuable employees. But if the employer waits a year or so and is, in the interim, inspected by ICE, the employer may face hefty fines and – in the most egregious situations – a prison sentence.

And it has become abundantly clear that ICE is not “chilling out” until the new batch of DACA and DAPA employment authorization cards are issued. (ICE isn’t even chilling for the holidays, having issued Notices of Inspection this week.) Who is most likely to be inspected? Employers in “critical infrastructure” are high on ICE’s priority list.[1] It also seems that employers who were previously inspected and issued a Warning Notice are high on the list, as are employers referred to ICE after an investigation by another agency (DOL, OSC, USCIS). And those employers who are suspected of hiring unauthorized workers – knowingly or unknowingly – are at high risk of an inspection. Employers at higher risk of inspections may not be wise to gamble by waiting to conduct an audit.

Wait a second … this was supposed to be a holiday-themed blog post? Yikes. Okay. So, one day I was running on River Road and listening to Vampire Weekend (for the purposes of this post, we are going to say that the song was “Holiday”) when an unidentifiable liquid dropped from a tree directly into my eye. I became convinced that a squirrel peed in my eye. The best thing to do when you think a squirrel has peed in your eye is ask your Facebook friends for advice. They will call you Chicken Little, and your eye will be fine. And if you still don’t feel like this post was holiday-y enough, here’s a gift: an annotated Form I-9 to help keep you out of trouble. Merry Christmas!

[1] “Critical infrastructure” is defined by ICE to include Agriculture/Food, Banking/Finance, Chemical, Commercial Facilities, Communications, Critical Manufacturing, Dams, Defense Industrial Base, Emergency Services, Energy, Government Facilities, Healthcare/Public Health, Information Technology, National Monuments/Icons, Nuclear Reactors, Materials/Waste, Postal/Shipping, Transportation Systems, and Water.
[2] But some employers in California are considering conducting self audits on an expedited basis so that they can terminate employees who lied at the time of hire about their employment authorization. (Such terminations based on dishonesty may not be allowed if the employees have gained employment authorization under a law that took effect early this year.)